Sample Motion for a New Trial

IN THE CIRCUIT COURT FOR PRINCE GEORGE’S COUNTY, MARYLAND Civil Division

TOMMY BENNETT, Plaintiff,

v.

KENNETH G. BUTTS, Defendant.

Case No. CAL06-02094

Plaintiff's Motion for Summary Judgment Notwithstanding the Verdict

Plaintiff, Tommy Bennett (hereinafter "Plaintiff"), by and through his attorneys, Ronald V. Miller, Jr., Laura G. Zois and Miller & Zois, LLC, hereby requests that this Court grant judgment notwithstanding the jury's verdict on the issue of the primary negligence of the Defendant. Plaintiff further requests this court enter judgment on the issue in favor of the Plaintiff on the issue of contributory negligence. In support, Plaintiff states as follows:

Facts

The facts of this case revolve around the Boulevard Rule. Five witnesses testified at the trial of the above referenced matter on the issue of liability. Plaintiff, Defendant, Linda Horne, Chris Askew, and Nicole Bowman. All five witnesses, including the Defendant, agreed that the Defendant was at the intersection of Birch Tree and Wheeler and that Birch Tree was controlled by a stop sign and that there were no traffic control devices for traffic on Wheeler. Thus, Birch Tree was the unfavored road and Wheeler, the favored road.

Defendant admits that he had clear visibility to his left as far as a half of a mile before making his left hand turn. The last time he looked to the left, the closest vehicle to him approaching from his left was several hundred feet away. The Defendant pulled out from the stop sign and traveled less than 20 feet before the impact took place between his vehicle and the plaintiff’s vehicle. All five witnesses also agree the impact took place in the Plaintiff's lane of travel. Clearly the Defendant failed to see the Plaintiffs’ vehicle before pulling out into traffic.

Over Plaintiff's objection, the Court allowed the issue of contributory negligence to go to the jury but specifically reserved ruling on the question of primary negligence. After deliberating for approximately three hours, the jury returned a verdict in favor of the Defendant on the issue of primary negligence.

Defendant was Negligent as a Matter of Law

Maryland Transportation Code Section 21-403(b) states that if the driver of a vehicle approaches a through highway, the driver shall stop at the entrance to the through highway and yield the right-of-way to any other vehicle approaching on the through highway. Under this Aboulevard rule" a favored driver is entitled to a statutory preference rendering the unfavored driver who fails to yield the right-of-way negligent as a matter of law unless the favored driver was proceeding unlawfully, and that unlawful behavior was a proximate cause of the accident. Poteet v. Sauter, 136 Md. App. 383, 766 A. 2d 150, 167-68 (Md. App. 2001).

Under the rule, Defendant was required to yield to Plaintiff. Defendant did not do so. Any allegation of unlawful conduct on behalf of the Plaintiff could not have been the proximate cause of the accident. In fact, Defendant did not even see Plaintiff until the impact with his vehicle. Accordingly, Defendant is negligent as a matter of law.

The Transportation Code's Definition of “Right-of-Way” as Traveling in a Lawful Manner Does Not Excuse Defendant's Obligations Under Maryland's Boulevard Rule

In Myers v. Bright, 327 Md. 395 (1992), the Court addressed head on the question of whether Plaintiff's alleged negligence can absolve a Defendant under the boulevard rule because the Plaintiff was not proceeding "in a lawful manner." In both Myers and in the instant case, the Defendants made much of the fact that "right-of-way" is now defined by statute as "the right of one vehicle or pedestrian to proceed in a lawful manner on a highway in preference to another vehicle or pedestrian." Md. Code (1977, 1987 Repl. Vol.) Transportation Code Section 21-101(r)(emphasis added). In Myers, the issue was speed. In the instant case, the issue is weaving in and out of traffic. The Court of Appeals specifically found that:

Bright could reasonably expect motorists to be coming southbound in the other lane, and he was obliged to look carefully before proceeding across. If he could not see anything, he should have waited until his line of sight was clear before completing the turn. Whatever the situation, it would be illogical to hold that Myers' speed relieved Bright of his general duty to give attention to those vehicles he could reasonably anticipate would be on the road.

Id. at 400 (emphasis added).

The Rational and Holding of Myers v. Bright is Indistinguishable from the Instant Case

Defendant cannot distinguish the rational and logic of the Court’s holding in Myers because Plaintiff was allegedly Aweaving in and out of traffic and passing vehicles" opposed to speeding. Plaintiff's alleged negligence does not excuse Defendant's general duty to give attention to vehicles he could reasonably anticipate on the roadway. As such, Defendant is negligent as a matter of law.

Plaintiff's Alleged Unlawful Acts Could Not Have Been Contributory Negligence Because it was not the Proximate Cause Of The Accident

The reasoning in Myers carries over to the question of whether Defendant can be contributorily negligent because of Defendant's contention that Plaintiff was not proceeding lawfully because Plaintiff was weaving in and out of traffic. This reasoning fails because Plaintiff alleged weaving and passing could not be the proximate cause of the accident because regardless of where Plaintiff was on the roadway, to the left of the lane or to the right, Defendant had an obligation to see him as he was coming down the favored road. The great irony of the Defendant's contention here is that if Plaintiff was doing what Defendant contends, it would make Plaintiff even more visible on the roadway.

In Myers, Judge Chasanow explained that even when a plaintiff's negligence is established, an independent issue still remains with respect to causation: ANegligence that does nothing to cause a mishap cannot create accountability... Our focus is simply on causation: Was Myers’ speeding a proximate cause of the accident? Even assuming that Myers was definitely speeding, she is not barred from recovery unless the accident can be at least partly attributable to her rate of travel.

Defendant engages in pure speculation that this was a proximate cause of the accident because maybe Plaintiff passed other vehicles. “[A] party who has the burden of proving another party guilty of negligence [as Defendant does in his affirmative defense], cannot sustain this burden by offering a mere scintilla of evidence, amounting to no more than surmise, possibility, or conjecture that such other party has been guilty of negligence, but such evidence must be of legal probative force and evidential value.” Myers at 399.

This evidence is the epitome of “surmise, possibility or conjecture” because, assuming arguendo, that there was evidence that Plaintiff passed a vehicle on the right or the left just before the accident, that the alleged unsafe activity was not the proximate cause of the accident. Plaintiff's alleged passing of a vehicle would not be unsafe as to the accident that actually occurred. If Plaintiff was negligent, he would have breached a duty (and created a risk) to other drivers on the favored road. He did not breach any duty to drivers on the unfavored road.

This point bears repeating: changing lanes certainly did not contribute to the accident that did occur and, ironically, probably made Plaintiff even more apparent to the Defendant. The fact is underscored by Defendant's argument during jury instructions that Plaintiff was negligent because he was behind the lead vehicle and knew that Defendant could not see him. Of course, the argument that being behind a car is without foundation but it furthers the notion that passing other vehicles (there was no evidence of speeding) likely made Plaintiff more visible to Defendant. As such, Plaintiff's conduct cannot be a proximate cause of his injuries.

Alternatively, Plaintiff Should be Given a New Trial Because this Court Improperly Instructed the Jury on Plaintiff'S Passing on the Left

This Court gave jury instructions that included Defendant's passing on the left and on the right. But as counsel believes this Court made clear, there was no evidence that Plaintiff's passing of vehicles on the right or left before the accident could be the proximate cause of this accident. As such, it was error to so instruct the jury and Plaintiff is entitled to a new trial.

Conclusion

For the foregoing reason, Plaintiff requests that this Court enter judgment in favor of the Plaintiff and order a new trial on Plaintiff's damages. Alternatively, Plaintiff requests a new trial on the issues of whether Plaintiff was contributorily negligent and damages. Respectfully submitted, MILLER & ZOIS, LLC

I, Ronald V. Miller, Jr., hereby certify that a copy of Plaintiff’s foregoing Motion for Summary Judgment Notwithstanding the Verdict was sent this 20th day of July, 2007, via U.S. first class mail, postage prepaid, to:

We serve the following localities: Baltimore; Prince George's County including Bowie, Laurel, Landover, Hyattsville; Anne Arundel County including Glen Burnie; Baltimore County including Cockeysville, Glyndon, Hunt Valley, Jacksonville, Lutherville-Timonium, Owings Mills, Parkville, Reisterstown, and Towson; Carroll County including Westminster; Frederick County including Frederick; Harford County including Abingdon, Bel Air, Belcamp, and Forest Hill; Montgomery County including Germantown and Rockville; Howard County including Ellicott City and Columbia, Washington, D.C. and Washington County including Hagerstown.